Bradley made up enough charges against Mr. Fox to bring him to a 3020-a hearing. His NYSUT attorney pressured him to resign, so he fired NYSUT and hired Attorney Stuart Lichten, the husband of NYSUT Attorney Maria Elena Gonzales Lichten, to defend him. He was terminated.
The Arbitrator appointed to hear his case was the relatively new addition to the UFT/DOE panel Lana Flame Esq. On or about September 3, 2013 Mr. Fox received his decision from Ms. Flame.
Mr. Fox, pro se, submitted a Verified Petition to the New York State Supreme Court to vacate this award of termination as shocking to the conscience, biased, and unconscionable. Evidently, according to Mr. Fox and in his petition, Arbitrator Flame showed bias toward the Department of Education Attorney Ian Nikol throughout the proceeding and believed all the witnesses except Mr. Fox.
This is why the determination of probable cause is so important. Tenure law, Education Law 3020-a(2)(a) describes this process as follows in sections (1) and (2)(a):
§ 3020-a. Disciplinary procedures and penalties
1. Filing of charges. All charges against a person enjoying the benefits of tenure as provided in subdivision three of section eleven hundred two, and sections twenty-five hundred nine, twenty-five hundred seventy-three, twenty-five hundred ninety-j, three thousand twelve and three thousand fourteen of this chapter shall be in writing and filed with the clerk or secretary of the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Except as provided in subdivision eight of section twenty-five hundred seventy-three and subdivision seven of section twenty-five hundred ninety-j of this chapter, no charges under this section shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.
2. Disposition of charges. (a). Upon receipt of the charges, the clerk or secretary of the school district or employing board shall immediately notify said board thereof. Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against an employee pursuant to this section. If such determination is affirmative, a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee by certified or registered mail, return receipt requested or by personal delivery to the employee.
But in New York City, says the Department, there is no such event as an Executive Session or a vote, and there doesn't have to be. The DOE ignores the requirements of determining probable cause presented in 3020-a(2)(a). Instead, the DOE argues, Chancellor has given Superintendents and principals the right to decide on charges, find probable cause, testify about their findings, and pursue termination of so-called "incompetent" teachers if they decide that this is the "fact" of the matter. There is a lot wrong with this, the most important being that one person becomes a judge, jury, and executioner. On this denial of due process, the UFT and NYSUT are silent. They do put in writing, however, that if you hire a private legal representative, i.e. attorney and/or paralegal, or do the 3020-a pro se, by yourself, you cannot use Education Law 3020-a as this law has been bargained away. That is simply untrue, I believe, and I can say that as a non-attorney paralegal who works in defense of teachers brought to 3020-a.
This issue will be litigated soon in Court, and as everyone who reads this blog knows, I will be assisting with this lawsuit, and the denial of rights by the UFT, NYSUT and the DOE is my main focus in my book.
In another 3020-a before Lana Flame, the Respondent teacher in that matter was terminated in a decision given to her from New York State Education Department on July 20, 2013. Yet she was told in June that she had been terminated effective May 28, 2013, and then the NYC DOE sent her an invoice to repay them for overpayment of salary from May 28 through July 2013! This teacher, through an error at the DOE, was able to obtain a letter written by DOE Teacher Performance Unit Deputy Director Dennis Da Costa dated May 28, 2013, to HR and the principal who filed the charges against this teacher that Flame had decided on termination, and the decision would be sent to NYS Education Department on July 5, 2013. Meanwhile, he told the principal and HR that this teacher had to be removed from payroll effective May 28.
New York State Supreme Court Judge Alice Schlesinger, on April 23, 2014, granted Mr. Fox's Petition based upon what seemed to be bias on the part of Lana Flame, denied the Corporation Counsel's Motion To Dismiss, and remanded back to a different Hearing Officer for a penalty less than termination. See below.
Betsy Combier
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY
OF NEW YORK
_______________________________________x
In the Matter of the Application of
GLEN
FOX INDEX NUMBER 101263/13
Petitioner, Motion Seq. No. 001
-against-
THE
NEW YORK CITY DEPARTMENT
OF
EDUCATION,
Respondent
________________________________________x
This is a difficult decision to begin. It is an Article 78 proceeding involving a tenured school guidance counselor who was terminated as an employee of the Department of Education. Why is it difficult? Because this Court feels so strongly that the termination was completely unjustified and was perhaps motivated by the personal feelings of both the new Principal, Pamela Bradley, who first came to P.S.150 for the school year 2010-2011, as well as Hearing Officer Lana Flame, who presided over the case. Knowing that is a harsh judgment to make, one I reluctantly reach, I nevertheless find that it is compelled by the circumstances of both the multiple charges or specifications against Fox and the detailed decision by the Hearing Officer, which recommended the most severe penalty of termination.
Petitioner Glen Fox, after receiving the appropriate licensing, was hired in 2004 to be the School Guidance Counselor at P.S.150 in Brooklyn by then Principal Sharon Wallace and Assistant Principal Pamela Bridges-Price. From that time until the new Interim Principal Pamela Bradley arrived, Mr. Fox had always received satisfactory ratings. In fact, Ms. Bridges-Price, called as a witness for respondent New York City Department of Education ("DOE") at Mr. Fox's hearing pursuant to Education Law §3020-a, testified in part that: "Mr. Fox performed the duties, I believe, that were required of him. Whether he performed them to the required specifications of the principal, he performed the duties to the best of his ability" (pp 527-28 of Hearing Transcript, "TR", Exh B to DOE Cross-Motion). She further testified that she could not speak as to tasks given to him by the principal, but: "I can only speak for anything I ever asked Mr. Fox to do…. Anything I ever requested him to do, he's done." (TR 528, on cross-examination by counsel for Fox).
The hearing was held and testimony given on April 12, 15 and 30, and on May 1, 3, and 13, 2013. On August 15, 2013, the Hearing Officer ruled on the multiple Specifications that had been set forth in two sets, for a total of 22 Specifications. She found that all the Specifications in the first set, except 1, 2 and 19(b), had been sustained, along with all the Specifications in the second set, except for 3(b). As stated earlier, the Hearing Officer recommended that: "The appropriate penalty for Respondent's culpability under the sustained charges is termination of his employment with the New York City Department of Education" (Exh. A., p.49, the final page of the decision). Mr. Fox did have counsel, who represented him at the hearing and post-hearing phase. However, now before this Court, he is representing himself.
In her decision, Hearing Officer Flame first set down the 22 Specifications against Mr. Fox. I will do that also, even though it is somewhat tedious to recite them all, as it is necessary not only to present a complete record, but also to give a flavor for what these charges really concerned. For the most part, they had to do with inadequate documentation, failure to precisely meet deadlines, and most significantly, not complying with the directions and instructions that Principal Bradley had issued.
It seems absolutely clear that by the end of Ms. Bradley's first year as Principal of P.S. 150, first in an interim capacity, she had concluded that Mr. Fox was not to her liking and should not continue working at the school, now her school. Ms. Bradley rejects this conclusion, but I find the facts bear it out. And I believe the actual predicate for this is an event that occurred in a highly charged meeting on June 1, 2011. Bradley and Fox were there, as was Fox's union representative and Assistant Principal Pamela Bridges-Price. In fact, this meeting was the subject matter of Specification 3, as well as footnote 4 by the Hearing Officer, which appears on page 18 of the decision.
The testimony was that Mr. Fox was upset, though not shouting, when confronted with allegations that he had not timely completed the middle school matriculation paper work. Fox did stand up and did move papers around the table. His tone became emotional and he was told by the others to "bring it down". However, it is what Ms. Bradley said, loud enough to have others such as Yolanda Carmen Creiner outside the office hear, that revealed the Principal's true feelings (TR 758). She shouted to Mr. Fox, twice: "You're finished."
The Hearing Officer does not give the statement much importance and attributes it to a loss of composure by the Principal. She adds that there is no other evidence to support that "this outburst was more than an isolated lapse in Principal Bradley's conduct." Hearing Officer Flame then observes that Principal Bradley continued to support Mr. Fox's professional development, as evidenced on pages 46-47 of the transcript. But these pages merely have Ms. Bradley being sworn in as the Department's first witness. Assuming the Hearing Officer meant pages 146-147, here there are long self-serving answers by Ms. Bradley interpreting the disciplinary letters she sent to Mr. Fox. The Q and A on these pages of her direct testimony proceed in this way, beginning with a reference to Exhibit 18, a letter Bradley had sent to Fox (TR 145, l 3, to 146, l 11):
"Q. How did that make you feel?
A. It concerned me one, because the reason I say to have documentation is because documentation takes you off the spot. All you have to do is refer to your documentation….
Q. So did the Respondent take any responsibility for his poor recordkeeping?
A. No responsibility at all….
Q. And how did that make you feel?
A. Again, just like at the end of the year before, every time I brought Mr. Fox up and had a conversation with him and even gave him ways to improve, keep your documentation, keep accurate documentation it wasn't happening. And so as, you know, when you're thinking about what's best for children accurate documentation is necessary so it made me very frustrated as a supervisor because it impacts the lives of children."
The above exchange is an apt portion to read because it nicely summarizes what the case against Glen Fox really was about, which was Principal Bradley's growing frustration and irritation with her perception that Mr. Fox was not documenting matters to her taste. But as the testimony also clearly shows, both on behalf of the Department and on behalf of Fox, the latter mostly ignored by the Hearing Officer, the case via its Specifications for the most part did not deal with the important work a counselor in Mr. Fox's shoes does and whether he was good and successful at doing that work. I find that the evidence shows that he was. However, more importantly, I find that the penalty of termination, the most severe penalty, is shockingly harsh because the Department was unable to prove the converse; i.e., that Mr. Fox was not good at his work.
These are the Specifications (Exh C). In the first set, dated October 15, 2012:
1) Respondent failed to enter all the required middle school admission decision information into the Student Enrollment Management System (SEMS) by the deadline in May 2011.
2) Respondent demonstrated a lack of professional fitness, and/or provided false and/or misleading information, in that respondent advised his supervisor that he (respondent) had entered all the required middle school decision information into SEMS by May 31, 2011.
These two Specifications were dismissed. Hearing Officer Flame took three plus pages to discuss these claims, and in doing so, she recites the relevant testimony in impressive detail. The Specifications continued as follows:
3) Respondent demonstrated a lack of professional fitness and/or insubordination, in that he shouted at his supervisor during a disciplinary meeting on June 1, 2011.
This Specification was sustained, although there is some serious question as to whether it should have been because there is no testimony in the record that Fox did shout at Bradley at the June 1st meeting. And the Hearing Officer fails to cite to any. However, there is clear testimony that Ms. Bradley shouted at Fox.
A witness called by Fox, Yolanda Carmen Creiner, stated that she worked in an office outside of Bradley's and heard the Principal yell: "You're finished. You're finished". (TR 758). She added: "I don't know based on what, but that's what I heard". The next question asked of Ms. Creiner was: "Could you hear Mr. Fox yelling anything?" She answered: "No, not at all…. I didn't hear anything from Mr. Fox." The Specifications continued (emphasis added):
4) Respondent failed to timely, properly, and/or adequately provide documentation of the services, or dates and times that he provided counseling to A student on May 12, 2011.
Specification 4 was proven based on Fox's admission in his testimony (p.24 of decision).
5) Respondent failed to report to his assigned post on September 8, 2011.
September 8, 2011 was the first full day of school. The charge was sustained based on the undisputed testimony that Fox was in neither the lunch room nor the SAVE room during the 4th and 6th periods. It was also undisputed that this absence never occurred again.
6) Respondent failed to properly and/or adequately maintain documentation of students' middle school placements, in that respondent failed to produce such documentation, as required, on September 9, 2011.
This charge was sustained, despite the fact that the discussion by the Hearing Officer dealt with only one student. Further, all acknowledge that Fox did provide documentation for this child, a signed consent form later on that day, despite his inability to do so when first directed to produce it. Hearing Officer Flame seems most disturbed here by Fox's refusal to take responsibility. But the question is, responsibility for what?, since there was no testimony that this unidentified child suffered in any way from this confusion.
7) Respondent demonstrated a lack of professional fitness, and or violated Chancellor's Regulation A-820, in that without authorization, he disclosed confidential student information to a social worker not employed with the New York City Department of Education, on September 19, 2011.
This charge was sustained because at the time, on September 19, 2011, the social worker in question saw a copy of the child's IEP ("Individualized Education Program") without authorization given to Fox. However, the authorization was faxed to the school later that same day.
8) Respondent exhibited unprofessional conduct, in that he left a professional development workshop, prior to the end of his work day, without seeking the permission of, or notifying, an administrator on February 10, 2012.
This charge was sustained as Mr. Fox admitted to the conduct. He explained that he left 20 minutes early because he received word that his daughter had "pink eye" and had to be picked up by him and taken home. The Hearing Officer found this "unauthorized early departure was unprofessional conduct" (p. 29 of decision).
9) Respondent demonstrated a lack of professional fitness, and/or was insubordinate, in that he failed to follow his supervisor's directive to take a student to his (respondent's) office and provide said student counseling on March 9, 2012.
This charge was sustained because "Mr. Fox allowed Assistant Principal Bridges-Price and Dean Kwateng to take the student Br. from him…" (p.29 of decision). It should be noted that both the Dean and Assistant Principal were Mr. Fox's supervisors. AP Bridge's-Price testified that the child resisted going with Mr. Fox (TR 502) and that Mr. Fox did not want to be unduly aggressive with the child. Hearing Officer Flame found Mr. Fox's explanation "without merit and disingenuous" (p.30 of decision). She seemed particularly offended because, in the midst of this incident, Mr. Fox failed to tell the others that Ms. Bradley had given him instructions to take the child to his own office.
10) Respondent demonstrated a lack of professional fitness, and/or neglected his duties, in that he failed to provide counseling to a student in crisis, on March 13, 2012.
This event involved a young child who was in the SAVE room and who had threatened to jump from the classroom window. It was Mr. Fox's lunch period when he was called about this child, whom he was scheduled to counsel the following period. At the time Fox was called, the child was huddled and crying on the floor behind the door in the SAVE room. Fox walked to the room, evaluated the situation, and concluded that the child, who was being monitored by another adult and was not in danger, could be seen by him soon after.
The Hearing Officer found that the child was in crisis and should have been seen immediately by Fox. It should be noted, however, that nothing bad happened to the child that day. Further, his mother gave powerful testimony at the hearing on behalf of Mr. Fox. (More on this later). Nevertheless, the charge was sustained.
11) Respondent demonstrated a lack of professional fitness, and/or provided false, inaccurate, and/or misleading information, in that respondent informed his supervisor that respondent had analyzed a situation and determined that a student did not need immediate counseling, on March 13, 2012.
This related to the same incident as Specification 10 and was sustained. The "misleading information" seems to be that Fox told Bradley that he had "analyzed the situation" but never told her he had not "visually assessed the student." This, according to the Hearing Officer, "demonstrated a lack of professional fitness" (p.32 of decision), rather than, as others might see it, as an exercise of professional judgment.
12) Respondent demonstrated a lack of professional fitness, and/or was insubordinate in that respondent failed to follow his supervisor's directives regarding a student's alleged threat to commit physical harm against another student, on April 16, 2012.
This is at best a confusing situation wherein two issues were in play. One was that DM., a young child, claimed to have a plan to kill another child, leading Fox to call DM's mother. The second issue involved the mother telling Fox that she was coming to the school. However, the problem was that she had, at an earlier time, been given limited access to the school and to her child. The Hearing Officer did not find Mr. Fox insubordinate, but she did find that he demonstrated a lack of fitness because he seems to have focused more on the "mother" situation than the "child" one. The charge was sustained.
13) Respondent demonstrated a lack of professional fitness, and/or neglected his duties, in that he failed to follow school protocol with respect to a report to the Administration for Children's Services (ACS) on April 16, 2012.
This charge was sustained because a form relating to the school's call to ACS was placed on the Dean's desk, rather than in his hands, which violated protocol.
14) Respondent demonstrated a lack of professional fitness, neglected his duties, and/or was insubordinate, in that he failed to follow his supervisor's directives regarding reporting a case to ACS, on April 28, 2012.
Here the charge was sustained even though Fox reported the case, as he had been directed to do by the Principal, and called ACS about sexual abuse between two children on a stairway. The basis for the finding against Fox appears to be that he, without any direction from Bradley, also reported a case of "educational neglect" vis-avis the male student involved in the incident. The latter complaint was "ultimately" determined to be unfounded.
15) Respondent neglected his duties and/or displayed insubordinate conduct, in that he failed to follow his supervisor's directive to contact ACS to identify the caseworker for two students, on May 24, 2012.
This charge was sustained because the Hearing Officer found that Fox had failed to contact ACS to learn the identity of the caseworker for two brothers. He explained that he had inadvertently given Principal Bradley the wrong name. This misinformation simply slowed the process of Bradley ascertaining that a mother who was coming to the school was not allowed to see her boys. In fact, the information was obtained, and when the mother came to the school she was escorted out without seeing the boys.
16) Respondent exhibited unprofessional, misleading, and/or deceptive conduct, in that he provided false information to his supervisor, on May 24, 2012.
The charge relates to the same incident as 15, but here the wrong name given to Bradley is characterized as something somehow more sinister. The charge was sustained.
17) During the 2011-2012 school year, Respondent failed to properly, adequately, and/or effectively plan and/or execute counseling sessions, as observed on April 23, 2012.
This charge involved a formal observation of Fox and his counseling of two children. The observation was conducted by Principal Bradley. It did not go well, as even Fox acknowledged. However, it is hard to see how he failed to "effectively plan" for the session when one of the boys, Br, came to the session extremely agitated after having a fight with another child, Ka. Fox believed and said that Bradley's presence and unwanted intervention made this bad situation worse. After the session, Fox took Br back to his classroom, where Ka was, even though Br had threatened to hit Ka back. After Fox left the room, Br did hit Ka, despite the teacher's presence in the room. The charge was sustained.
18) Respondent provided false information regarding school policy to an ACS caseworker on September 6, 2012.
This charge was sustained as the Hearing Officer found that it was not inconsequential for Fox to tell an ACS caseworker that the Principal's policy was to staple ACS information to a student's blue card. This was wrong, or as characterized by the Hearing Officer, "false information" (p. 38).
19) Respondent failed to implement professional development recommendations from observation conferences, plans of assistance, and professional development sessions, during the 2010-2011 and 2011-2012 school years with regards to:
a. Following the directives of his supervisors;
b. Responding appropriately to crisis situation and;
c. Properly and adequately maintaining required documentation.
Specification 19a was essentially a repeat of earlier accusations, such as Specifications 4, 14 and 18, so it was sustained. Specification 19b — the only one arguably even dealing with Fox's real counseling work — was dismissed for failure of proof. Specification 19c was sustained as Mr. Fox was unable to produce requested documentation for his counseling sessions.
As indicated earlier, there was a second set of Specifications. These referred to the time after Mr. Fox was removed from his guidance counseling duties and directed to do clerical work in an office at the school.
1) Respondent demonstrated a lack of professional fitness and/or insubordination, in that he failed to provide the principal with the name and/or contact number of a specific Administration for Children's Services (ACS) caseworker assigned to a specific student during the 2012-2013 school year.
As noted above and noted by the Hearing Officer in her discussion of this charge, Mr. Fox had been removed from his duties as a guidance counselor on October 18, 2012. Nevertheless, the charge was sustained as it referred to information he should have retained in the school, not at his home. Although he could not locate a log he kept, he did help Principal Bradley locate the information elsewhere.
2) Respondent demonstrated a lack of professional fitness and/or insubordination, in that he failed to maintain a copy of a specific student's ACS caseworker in the student's file in the guidance office during the 2012-2013 school year.
This charge was sustained and covers the same material as the previous one discussed in Specification 1.
3) Respondent failed to implement professional development conferences, plans of assistance, and professional development sessions, during the 2012-2013 school year with regards to:
a. Following the directives of his supervisors;
b. Responding appropriately to crisis situations and;
c. Properly and adequately maintaining required documentation.
The Hearing Officer acknowledged that this charge was identical to Specification 19 in the first set of charges. However, these accusations were for the following school year. Therefore, Hearing Officer Flame made the same findings as she did on Specification 19. She sustained (a) and (c) and dismissed (b).
The Hearing Officer then recapitulated her findings and commented: "Although not all of the charges against Mr. Fox are sustained, those that the Department has proven are substantial and go to the core of Mr. Fox's ability to provide a valid educational experience as a guidance counselor, for his students" (pp 44-45 of decision). She does elaborate on this point.
But are her comments valid? I find they are not. First, Hearing Officer Flame merely makes passing reference, at best, to the significance of the testimony of the two parent/witnesses who spoke on Mr. Fox's behalf. Second, she fails to acknowledge that no actual harm to anyone was noted as flowing from any of the proven charges; in other words, no actual harm to any individual child was shown. Also, she fails to acknowledge that the basis for virtually all of the charges was a clear personality conflict between a new interim principal who wanted to assert her authority and an experienced guidance counsel who believed he was being unfairly treated with the Principal's aim to get him to leave.
Hearing Officer Flame's almost four page discussion of penalty is more a repetition of her earlier findings. First, she reviews all of the efforts testified to by Ms. Bradley to "assist Mr. Fox in correcting his deficiencies" which "were largely ignored by him" (p 46 of decision). He was given an annual Faculty Handbook that contained policies and regulations applicable to his duties. He attended many meetings of a disciplinary nature, some with the Principal and others with staff members. Since a meeting with Bradley followed each of the Specifications, this part of the decision is largely repetitious of the earlier discussions.
The Hearing Officer then appears to recognize, or at least she says she does, the "seriousness of upholding the termination of a tenured employee with seven years of employment as a guidance counsel with the Department." Therefore, she states that she has considered "whether there are mitigating factors that would call for a penalty short of termination" (p 47). However, by what follows, she apparently could find none. But this conclusion, in my opinion, could only be reached by someone who ignored important evidence. Considering the nature of the duties of a guidance counselor, one would think that connecting with children and helping them would be an important item. Arguably, it is as important, if not more, than documenting precisely when the counseling sessions occurred.
In this regard, two parents of troubled children attended the hearing to testify on behalf of Fox. The first was S Y, the mother of the child who was discussed in Specification 10. She spoke about meeting with Mr. Fox, her son's guidance counselor, "dozens of times". She would ask how her son was doing and "he would be doing fine because when my son was with Mr. Fox, [he] was great. His behavior was great. Now he's declining since he hasn't been his guidance counselor." (p 718). In fact, she added that when Mr. Fox was counseling him, "they were not calling me that much because, you know, like I say, he was a great counselor with him" (p 722).
As noted earlier, this was the child who had threatened to jump out of a school window. Therefore, when his mother was being cross-examined by the attorney for the Department, he asked her about this incident. This was the ensuing Q&A on pages 723 -24. The question was premised on Fox's refusal to see the boy because he, Fox, was having lunch.
Q. Does that change your opinion of Mr. Fox at all?
A. No.
Q. No? You still think he's a good guidance counselor?
A. I still think he's a great counselor…. Yeah. I think he's a great guidance counselor.
Then on pages 724-725, the cross-examination continued with the Department attorney inquiring how many counseling sessions Ms. Hamilton-Yancey had actually attended. She answered none because they were during school hours and she was at home with her other children. Then this exchange:
Q. Okay. And have you ever observed him counsel any other children?
A. No, but when I came up to the school I seen him with my son and other kids he counseled.
Q. And he interacts with them well?
A. Yes, very well.
Q. Okay.
A. All the children at the school love Mr. Fox.
Q. Okay, thank you.
Then there was a second mother, J T, who knew Mr. Fox though her son "Ja". He had attended P.S.150 for four years and Mr. Fox had been his counselor. Ms. T had met Mr. Fox "about six times." What were the occasions? (pp 938-39):
A. Oh, my son Ja, whenever he is bullied at school Mr. Fox interfered.
Q. And what happened when you saw him? What were you talking to Mr. Fox about?
A. Like he talked about Ja and we talked what he could have done for Ja because Ja didn't want to come to school. He didn't — he didn't like coming to school until Mr. Fox, you know. And he said whenever — like for example time for Mr. Fox to teach, like he's his guidance counselor. And he said "Today is Mr. Fox day," you know. And he goes to school, you know, and then I said, "I want to meet Mr. Fox." That's when I went there and I met him. And sometimes on certain occasions I called him and there were times when — I remember when Ja was — the most — part was when Ja was leaving to go to high school. I didn't know what to do. And I called Mr. Fox and said I wasn't sure what school to send him because I was nervous. And then he told me — he sit with me and talk with me and help me to get a school for him, and he's happy now.
The Department's attorney simply clarified when her son was at P.S. 150. And then Ms. T was excused. But before she left, she said: "And, for the record, I took the day off from work without pay just to come because this man was there for my kid" (p. 941).
Additionally, there was the testimony of Assistant Principal Pamela Bridges-Price, a Department witness, who supported Fox's testimony as to the June 1st meeting and as to the incident that occurred on March 9, 2012 involving BR who resisted walking with Mr. Fox. It was at that point that she and the Dean intervened. This is Specification 9, for which Fox was found guilty of having failed to tell Ms. Bridges-Price and the Dean, Fox's supervisors, that Principal Bradley had earlier told him to take BR to his office.
This witness also attested that Fox performed the duties that were required of him (p 527). She added "whether he performed them to the required specifications of the principal, he performed the duties to the best of his ability". Further, "anything I ever requested him to do, he's done" (p 528).
A further deficiency in Hearing Officer Flame's decision was her failure to comment on or even mention that Bradley's first annual year end evaluation of Fox simply contained a rating of "Unsatisfactory". In other words, all of the other boxes on the evaluation elaborating on the employee's performance were left blank. Why? Bradley explained that it was her "first year" and that she called for assistance. She added: "I didn't get the information that I needed to do. I was new and I, they said put the U there and I put the U there, but I didn't know about the boxes and how to go about doing that."(p 106). When asked by DOE counsel, she indicated that the rating had been upheld on appeal (p 108).
One would think that such failure by Principal Bradley to document her findings, coming at the end of her first year, a year in which she insisted on documentation above all else, would at least be noted as an element of irony. Or be considered in evaluating how serious Fox's deficiencies in this same area actually were. Such was not the case.
In determining the severity of a punishment in a situation such as this one, with termination being the ultimate penalty, the Hearing Officer clearly understood that one consideration must be the harm, if any, to a student. In this regard, on page 48 of her decision, Hearing Officer Flame first notes that Mr. Fox did apologize for several incidents, none of which resulted in injury to anyone. An example of this is his leaving a professional development session early, without getting permission, to attend to his own sick daughter. Another was giving Principal Bradley the wrong ACS contact name when first asked for that information. Neither of these incidents resulted in harm to anyone.
As to the incidents for which the Hearing Officer found that Fox did not take responsibility, incidents that resulted in alleged harm, the examples she gives include Fox turning the child BR over to his supervisors, the Dean and the Assistant Principal, instead of following the Principal's directive to take BR to his own office, despite the child's clear, physical resistance to Fox's efforts. Yet there is nothing in the record to show that such a change had bad consequences for BR.
On page 47, other examples are given. The Hearing Officer finds fault with Fox's insufficient documentation to support transferring the child Sh B. However, the motives of the Principal here are questionable since the transfer involved a clearly troubled and troubling girl who lived in another school zone and therefore could be sent there if the notes were complete. But despite Bradley's testimony that the transfer would be best for the child, that conclusion is far from clear. What is clear, however, is that the Principal's efforts to transfer a difficult child failed.
With regard to Jo. Y, he did not in fact jump out of any window for lack of on the spot counseling, and he was the child whose mother repeatedly testified that Fox was a great guidance counselor to him. As far as Fox not being in the cafeteria to prevent a fight, that lapse was for one day only, and it is speculative as to what would have happened if he had been there.
Certainly there are times when a tenured teacher or guidance counselor should be terminated. In Matter of Haas v. New York City Dept. of Educ., 106 AD3d 620, 621 (1st Dep't. 2013), a penalty of termination was upheld "in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed." Also, according to the record, the teacher showed a lack of remorse.
Termination was also upheld in Matter of Douglas v. New York City Bd./Dept. of Educ., 87 AD3d 856 (1st Dep't. 2011). There a teacher was found guilty of two specifications involving acts of "moral turpitude committed in the course of public employment." Id. at 857. These involved things that Douglas had said and actions he had taken of a sexual nature towards students, who testified and were found credible.
In Cipollaro v. New York City Dept. of Educ., 83 AD3d 543 (1st Dep't. 2011), a teacher's termination was upheld because the Hearing Officer found that the teacher had "knowingly defrauded respondent of $98,000 over a two-year period by enrolling two of her children in New York City public schools when she and her family lived in Westchester County…" Id. at 544, citations omitted. The conduct by Mr. Fox at issue here in no way compares to the conduct in any of these cases.
The case here is far more similar to Matter of Guzman v. City of New York, et al., 110 AD3d 581 (1st Dep't 2013). Guzman involved a school teacher who allegedly gave a false address so that her granddaughter could attend the City public school at which she taught. The Appellate Division upheld the finding that the teacher had filed a false statement of the child's address, but it nevertheless vacated the penalty of termination as too harsh, and remanded for a lesser penalty, because the DOE had failed to offer proof that the child was not a City resident entitled to a tuition-free education. Thus, there was no showing of actual harm to the City, nor proof of a scheme by the teacher to defraud the DOE out of non-resident tuition. Similarly here, as previously noted by this Court, the DOE failed to introduce any evidence at the hearing that any action or inaction by Fox caused actual harm to any child.
It must be clear by my decision up to this point that I find the penalty imposed here to be shockingly severe and unwarranted. I am not disturbing the findings on the various Specifications even though I believe the findings with regard to the June 1, 2011 meeting, Specification 3, were not supported by the record. I also find some of the other proven charges are petty in the extreme or at least questionable. This would include Fox's leaving a professional workshop 20 minutes early to tend to his own sick child, yielding a resistant student to his supervisors, or making a judgment call to counsel a troubled child after lunch as previously scheduled upon confirming that the child was then in a safe place. The findings regarding lack of documentation and conduct vis-a-vis his Principal's instructions do have come support.
But again, the penalty does not. When the Hearing Officer began the Discussion part of her decision on page 17, she said that her decision would rest largely on her assessment of the credibility of the witnesses' testimony. This is certainly fair. She then proceeds to say that she found all the witnesses on both sides credible (p 18) — except for Glen Fox. She bases this conclusion in large part, I believe, on petitioner's thought that he was being discriminated against and of having the temerity to file a complaint with the New York State Division of Human Rights. In that complaint, Fox accused Principal Bradley of rating his work unsatisfactory because he was a 48 year old white, Jewish male. The complaint was dismissed, not on the merits, but rather on a finding that Fox had not yet been subjected to an adverse employment action.
But this complaint by Fox, I find, was given far too much importance by Hearing Officer Flame. She began her discussion on page 18 with this essentially unrelated lawsuit and ended her discussion on page 49 with reference to it once again. She used it to maintain that Fox always blamed others, refused to accept responsibility, refused to comply with supervisors' instructions, and ultimately was not credible. Thus, he deserved to be terminated. But certainly, another more benign interpretation could be that in light of his consistent history of doing a "satisfactory" job, he was now being unfairly discriminated against.
In Matter of Principe v. New York City Dept. of Educ., 94 AD3d 431, 432 (2012), aff'd 20 NY3d 963, the First Department agreed with this Court that the Hearing Officer "had an apparent bias against petitioner when he discredited petitioner's entire testimony based, in part, upon respondent's mischaracterization of a portion of petitioner's testimony in addition to petitioner's testimony that he had once filed for bankruptcy." The appellate court also agreed with this Court in Principe that "by discrediting petitioner's entire testimony, the Hearing Officer failed to consider all the circumstances…" Id.
A similar, unfair evaluation occurred here, very possibly motivated by the Hearing Officer's strong adverse feelings toward Mr. Fox for bringing the complaint with the State Commission. This complaint may have had some small relevance to the matters at hand. But for reasons unclear, it played a far more significant role in the Hearing Officer's mind when weighing Fox's credibility.
It also resulted in her failure to properly weigh all of the testimony, which included not only Fox's consistently satisfactory work in the years before Ms. Bradley's arrival, but also the testimony of two mothers that Fox was a great guidance counselor. The Hearing Officer also gave little weight, if any, to the testimony of Assistant Principal Bridges-Price that Fox always did what he was instructed to do, at least from her stand point.
Finally, I believe the Hearing Officer failed to acknowledge that no actual harm came to any student as a result of Fox's actions. He may have had a problem with the new Principal and her rules, but there was no proof that any of these charges, in a real way, compromised his ability to be a "great guidance counselor" to his students.
For all of these reasons, I am vacating the penalty and remanding the matter to a different Hearing Officer to determine a lesser punishment. The DOE's cross-motion to dismiss for failure to state a cause of action is denied, as Fox undeniably has a "cause of action cognizable at law," (Polonetsky v. Better Homes Depot, 97 NY2d 46, 54 [2001]), and the DOE at oral argument withdrew its defense of statute of limitations as erroneous. Under the circumstances here, the service of an answer is not warranted upon the denial of the motion, as the facts have been fully presented in the parties' papers and no factual dispute remains. Applewhite v. Board of Educ. of City School Dist. of City of New York, 115 AD3d 427 (1st Dep't 2014), citing Nassau BOCES Cent. Council of Teacher v. Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102 (1984); Matter of Camacho v. Kelly, 57 AD3d 297. 298-99 (1st Dep't 2008).
Accordingly, it is hereby
ORDERED that respondent's motion to dismiss is denied; and it is further
ADJUDGED that the petition is granted to the extent of vacating the penalty of termination and remanding the matter for a determination by a different Hearing Officer of a lesser penalty consistent with the terms of this decision.
Dated: April 23, 2014
Alice Schlesinger
J.S.C.
From the New York Law Journal
From the New York Law Journal
Judge Says Firing of School Counselor Too Harsh a Penalty
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A tenured grade school guidance counselor was wrongly fired, perhaps because his school's principal disliked him, a Manhattan judge ruled Wednesday, ordering a new hearing to determine a lesser penalty.
Glen Fox, was fired from P.S. 150 in Brooklyn over charges that he did not keep adequate records or follow certain instructions. But Supreme Court Justice Alice Schlesinger ( See Profile) ruled in Fox v. Department of Education, 101263/13, that the penalty of termination was far too severe for Fox's alleged conduct.
She said the record of his case suggested that the principal was motivated by her own negative feelings toward Fox. She also said that the hearing officer who presided over the disciplinary case, Lana Flame, was not objective.
"Knowing that is a harsh judgment to make, one I reluctantly reach, I nevertheless find that it is compelled by the circumstances of both the multiple charges or specifications against Fox and the detailed decision by the Hearing Officer," Schlesinger wrote.
